Exhibit 10.4

 

EXECUTION VERSION

 

GOLDMAN, SACHS & CO. | 200 WEST STREET | NEW YORK, NEW YORK 10282-2198 | TEL:  212-902-1000

 

Opening Transaction

 

	
To:
    	
Amicus Therapeutics, Inc.

1 Cedar Brook Drive

Cranbury, NJ 08512
    
	
 
    	
 
    
	
A/C:
    	
051932044
    
	
 
    	
 
    
	
From:
    	
Goldman,   Sachs & Co.
    
	
 
    	
 
    
	
Re:
    	
Additional Capped Call   Transaction
    
	
 
    	
 
    
	
Ref. No:
    	
SDB3300778540
    
	
 
    	
 
    
	
Date:
    	
December 19, 2016
    


 

Dear Ladies and Gentlemen:

 

The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (the “Transaction”) between Goldman, Sachs & Co. (“Dealer”) and Amicus Therapeutics, Inc. (“Counterparty”).  This communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 

1.              This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”).  In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern.  Certain defined terms used herein have the meanings assigned to them in the Indenture to be dated as of December 21, 2016 between Counterparty and Wilmington Trust, National Association, as trustee (the “Indenture”), relating to the USD 225,000,000 principal amount of 3.00% Convertible Senior Notes due 2023 and the additional USD 25,000,000 principal amount of 3.00% Convertible Senior Notes due 2023 issued pursuant to the option to purchase additional convertible securities exercised on the date hereof (the “Convertible Securities”).  In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern.  For the avoidance of doubt, references herein to sections of the Indenture are based on the draft of the Indenture most recently reviewed by the parties at the time of execution of this Confirmation.  If any relevant sections of the Indenture are changed, added or renumbered between the execution of this Confirmation and the execution of the Indenture, the parties will amend this Confirmation in good faith to preserve the economic intent of the parties, as evidenced by such draft of the Indenture.  The parties further acknowledge that references to the Indenture herein are references to the Indenture as in effect on the date of its execution and if the Indenture is amended, modified or supplemented following its execution, any such amendment, modification or supplement will be disregarded for purposes of this Confirmation (other than Section 8(b)(ii) below) unless the parties agree otherwise in writing.  The Transaction is subject to early unwind if the closing of the Convertible Securities is not consummated for any reason, as set forth below in Section 8(k).

 

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in

 











 

reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

 

This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency—Cross Border) as if Dealer and Counterparty had executed an agreement in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“USD”) as the Termination Currency, (ii) the replacement of the word “third” in the last line of Section 5(a)(i) of the Agreement with the word “first” and (iii) in respect of Section 5(a)(vi) of the Agreement (a) the election that the “Cross Default” provisions shall apply to Dealer with a “Threshold Amount” equal to 3% of the shareholders’ equity of The Goldman Sachs Group, Inc. (“GS Group”) as of the Trade Date, (b) the deletion of the phrase “, or becoming capable at such time of being declared,” from clause (1) thereof, (c) the following language added to the end thereof: “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due; and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.” and (d) the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business). All of the obligations of Dealer hereunder shall be unconditionally guaranteed in favor of Counterparty by GS Group under the guarantee filed as Exhibit 10.45 to GS Group’s Form 10-K filed with the Securities and Exchange Commission on February 7, 2006.

 

All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein.  In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.

 

The Transaction hereunder shall be the sole Transaction under the Agreement.  If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer and Counterparty are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master Agreement.

 

2.              The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions.  The terms of the particular Transaction to which this Confirmation relates are as follows:

 

General Terms:

 

	
Trade Date:
    	
December 19, 2016
    
	
 
    	
 
    
	
Effective Date:
    	
The closing date of the issuance of the Convertible   Securities issued pursuant to the option to purchase additional Convertible   Securities exercised on the date hereof.
    
	
 
    	
 
    
	
Option Style:
    	
Modified American, as described under “Procedures   for Exercise” below.
    
	
 
    	
 
    
	
Option Type:
    	
Call
    
	
 
    	
 
    
	
Seller:
    	
Dealer
    
	
 
    	
 
    
	
Buyer:
    	
Counterparty
    
	
 
    	
 
    
	
Shares:
    	
The Common Stock of Counterparty, par value
    


 

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USD0.01 (Ticker Symbol: “FOLD”).
    
	
 
    	
 
    
	
Number of   Options:
    	
The number of Optional Securities (as defined in the   Purchase Agreement) in denominations of USD1,000 principal amount purchased   pursuant to the exercise by Goldman, Sachs & Co. and J.P. Morgan   Securities LLC as representatives (the “Representatives”)   of the Initial Purchasers (as defined in the Purchase Agreement), of their   option to purchase additional Convertible Securities pursuant to   Section 2 of the Purchase Agreement (as defined below). For the   avoidance of doubt, the Number of Options outstanding shall be reduced by   each exercise of Options hereunder.
    
	
 
    	
 
    
	
Option   Entitlement:
    	
As of any date, a number of Shares per Option equal   to the “Conversion Rate” (as defined in the Indenture, but without regard to   any adjustments to the Conversion Rate pursuant to a Fundamental Change   Adjustment or a Discretionary Adjustment).
    
	
 
    	
 
    
	
Fundamental   Change Adjustment:
    	
Any adjustment to the Conversion Rate pursuant to   Section 4.06 of the Indenture.
    
	
 
    	
 
    
	
Discretionary   Adjustment:
    	
Any adjustment to the Conversion Rate pursuant to   Section 4.05(b) of the Indenture.
    
	
 
    	
 
    
	
Strike Price:
    	
As of any date, an amount in USD equal to USD1,000 divided by the Option Entitlement as of such date. The   Strike Price shall be rounded by the Calculation Agent in accordance with the   applicable provisions of the Indenture.
    
	
 
    	
 
    
	
Cap Price:
    	
USD7.2000
    
	
 
    	
 
    
	
Number of   Shares:
    	
As of any date, a number of Shares equal to the   product of (i) the Applicable Percentage, (ii) the Number of   Options and (iii) the Option Entitlement.
    
	
 
    	
 
    
	
Applicable   Percentage:
    	
20.00%
    
	
 
    	
 
    
	
Premium:
    	
USD269,000.00
    
	
 
    	
 
    
	
Premium Payment   Date:
    	
The Effective Date
    
	
 
    	
 
    
	
Exchange:
    	
The NASDAQ Global Market
    
	
 
    	
 
    
	
Related   Exchange:
    	
All Exchanges
    
	
 
    	
 
    
	
Procedures for   Exercise:
    	
 
    
	
 
    	
 
    
	
Exercise Dates:
    	
Each Conversion Date.
    
	
 
    	
 
    
	
Conversion Date:
    	
Each “Conversion Date” (as defined in the Indenture)   occurring during the Exercise Period for Convertible Securities each in denominations   of USD1,000 principal amount that are not “Relevant Convertible Securities”   under (and as defined in) the confirmation between the parties hereto   regarding the Base Capped Call Hedge Transaction dated December 15, 2016   (Transaction Ref. No. SDB3300776504) (the “Base   Capped Call Transaction Confirmation”); provided that,   no Conversion Date shall be deemed to
    


 

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have occurred with respect to Exchanged Securities,   Excluded Convertible Securities or “Excluded Convertible Securities” under   (and as defined in) the Base Capped Call Transaction Confirmation (such   Convertible Securities, other than Exchanged Securities, Excluded Convertible   Securities and such “Excluded Convertible Securities” under the Base Capped   Call Transaction Confirmation, the “Relevant Convertible   Securities” for such Conversion Date). For the purposes of   determining whether any Convertible Securities will be Relevant Convertible   Securities or Excluded Convertible Securities hereunder or “Relevant   Convertible Securities” or “Excluded Convertible Securities” under, and as   defined in, the Base Capped Call Transaction Confirmation, Convertible   Securities that are converted pursuant to the Indenture shall be allocated   first to the Base Capped Call Transaction Confirmation until all Options   thereunder are exercised or terminated.
    
	
 
    	
 
    
	
Exchanged   Securities:
    	
With respect to any Conversion Date, any Convertible   Securities with respect to which Counterparty makes the election described in   Section 4.12 of the Indenture and the financial institution designated   by Counterparty accepts such Convertible Securities in accordance with   Section 4.12 of the Indenture. For the avoidance of doubt,   (i) Convertible Securities are “accepted” for purposes of the foregoing   upon the earlier of the declaration of the designated financial institution’s   agreement to exchange such Convertible Securities or delivery of such   Convertible Securities to such financial institution for purposes of such   exchange and (ii) any Exchanged Securities will be treated as   Convertible Securities on any subsequent Conversion Date with respect to such   securities, unless such securities are Exchanged Securities on such   subsequent Conversion Date.
    
	
 
    	
 
    
	
Excluded Convertible   Securities:
    	
Convertible Securities subject to the occurrence of   an Excluded Conversion Event, as described in Section 8(b)(i).
    
	
 
    	
 
    
	
Exercise Period:
    	
The period from and excluding the Effective Date to   and including the Expiration Date.
    
	
 
    	
 
    
	
Expiration Date:
    	
The earlier of (i) the last day on which any   Convertible Securities remain outstanding and (ii) the second “Scheduled   Trading Day” (as defined in the Indenture) immediately preceding the   “Maturity Date” (as defined in the Indenture).
    
	
 
    	
 
    
	
Automatic   Exercise on Conversion Dates:
    	
Applicable; and means that on each Conversion Date,   a number of Options equal to the number of Relevant Convertible Securities   for such Conversion Date in denominations of USD1,000 principal amount shall
    


 

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be automatically exercised, subject to “Notice of   Exercise” below.
    
	
 
    	
 
    
	
Notice Deadline:
    	
In respect of any exercise of Options hereunder on   any Conversion Date, 5:00 P.M., New York City time, on (i) in the case   the applicable Relevant Convertible Securities will be settled by   Counterparty by delivery of Shares only (together with cash in lieu of any   fractional Share), the Scheduled Trading Day immediately following the   relevant Conversion Date, or (ii) otherwise, the Scheduled Trading Day   immediately preceding the first Scheduled Trading Day of the relevant Cash   Settlement Averaging Period; provided   that in the case of any exercise of Options hereunder in connection with the   conversion of any Relevant Convertible Securities for any Conversion Date   occurring during the period from and including the 65th “Scheduled Trading   Day” (as defined in the Indenture) prior to the Maturity Date, to and   including the Expiration Date (such period, the “Final   Conversion Period”), the Notice Deadline shall be 5:00 P.M., New   York City time, on the “Scheduled Trading Day” (as defined in the Indenture)   immediately preceding the Maturity Date.
    
	
 
    	
 
    
	
Notice of   Exercise:
    	
Notwithstanding anything to the contrary in the   Equity Definitions, Dealer shall have no obligation to make any payment or   delivery in respect of any exercise of Options hereunder and such obligation   in respect of such exercise shall be permanently extinguished unless   Counterparty notifies Dealer in writing prior to 5:00 P.M., New York City   time, on the Notice Deadline in respect of such exercise, of (i) the   number of Relevant Convertible Securities being converted on the related   Conversion Date (specifying, if applicable, whether all or any portion of   such Convertible Securities are Convertible Securities as to which additional   Shares would be added to the Conversion Rate (as defined in the Indenture)   pursuant to Section 4.06 of the Indenture (the “Make-Whole   Convertible Securities”)), (ii) the scheduled settlement date   under the Indenture for the Relevant Convertible Securities for such   Conversion Date, (iii) whether such Relevant Convertible Securities will   be settled by Counterparty by delivery of cash, Shares or a combination of   cash and Shares and, if such a combination, the “Specified Dollar Amount” (as   defined in the Indenture) and (iv) the first “Scheduled Trading Day” (as   defined in the Indenture) of the relevant “Observation Period” (as defined in   the Indenture), if any; provided that   in the case of any exercise of Options in connection with the conversion of   any Relevant Convertible Securities for any Conversion Date occurring during   the Final Conversion Period, the contents of such notice shall be as set   forth in clauses (i) and (ii)
    


 

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above; provided, further,   that any “Notice of Exercise” delivered to Dealer pursuant to the Base Capped   Call Transaction Confirmation shall be deemed to be a Notice of Exercise   pursuant to this Confirmation and the terms of such Notice of Exercise shall   apply, mutatis mutandis, to this   Confirmation. Counterparty acknowledges its responsibilities under applicable   securities laws, and in particular Section 9 and   Section 10(b) of the Securities Exchange Act of 1934, as amended   (the “Exchange Act”) and the rules and   regulations thereunder, in respect of any election of a settlement method   with respect to the Convertible Securities. For the avoidance of doubt, if   Counterparty fails to give such notice when due in respect of any exercise of   Options hereunder, Dealer’s obligation to make any payment or delivery in   respect of such exercise shall be permanently extinguished, and late notice   shall not cure such failure. If applicable, the Notice of Exercise shall also   contain the Settlement Method Election Provisions.
    
	
 
    	
 
    
	
Notice of Final   Convertible Security Settlement Method:
    	
Counterparty shall notify Dealer in writing of the   final settlement method (and, if applicable, the final Specified Dollar Amount)   elected (or the default settlement method that applies pursuant to   Section 4.03(a)(i) of the Indenture) with respect to the   Convertible Securities before 5:00 P.M. (New York City time) on the   earlier to occur of (x) the date on which it makes the irrevocable   election of a settlement method in accordance with   Section 8.01(l) of the Indenture and (y) September 15,   2023. If applicable, the Notice of Final convertible Security Settlement   Method shall also contain the Settlement Method Election Provisions.
    
	
 
    	
 
    
	
Dealer’s Telephone   Number and Telex and/or Facsimile Number and Contact Details for purpose of   Giving Notice:
    	
As specified in Section 6(b) below.
    
	
 
    	
 
    
	
Settlement   Terms:
    	
 
    
	
 
    	
 
    
	
Settlement Date:
    	
For any Exercise Date, the settlement date for the   cash (if any) and/or Shares (if any) to be delivered in respect of the   Relevant Convertible Securities for the relevant Conversion Date under the   terms of the Indenture; provided that   the Settlement Date shall not be prior to the latest of (i) the date one   Settlement Cycle following the final day of the relevant Cash Settlement   Averaging Period, (ii) the Exchange Business Day immediately following   the date on which Counterparty gives notice to Dealer of such Settlement Date   prior to 5:00 P.M., New York City time, or (iii) the Exchange Business   Day immediately following the date Counterparty provides the Notice
    


 

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of Delivery Obligation prior to 5:00 P.M., New   York City time.
    
	
 
    	
 
    
	
Delivery Obligation:
    	
In lieu of the obligations set forth in Sections 8.1   and 9.1 of the Equity Definitions, and subject to “Notice of Exercise” above,   in respect of an Exercise Date, Dealer will deliver to Counterparty on the   related Settlement Date (the “Delivery Obligation”):
    
	
 
    	
 
    
	
 
    	
(i) (I) the   product of the Applicable Percentage and a number of Shares equal to the   aggregate number of Shares, if any, that Counterparty would be obligated to   deliver to the holder(s) of the Relevant Convertible Securities for such   Conversion Date pursuant to Section 4.03(a)(ii)(C) of the Indenture   (except that such number of Shares shall be determined without taking into   consideration any rounding pursuant to Section 4.03(b) of the   Indenture and shall be rounded down to the nearest whole number) and   (II) cash in lieu of any fractional Share resulting from such rounding;   and/or
    
	
 
    	
 
    
	
 
    	
(ii) cash equal to   the product of the Applicable Percentage and the excess of (I) the   “Daily Principal Portion” (as defined in the Indenture) over   (II) USD1,000 divided by   60, for each “VWAP Trading Day” (as defined in the Indenture) during the   relevant Cash Settlement Averaging Period per Convertible Security (in   denominations of USD1,000) that Counterparty would be obligated to deliver to   holder(s) of the Relevant Convertible Securities for such Conversion   Date pursuant to Section 4.03(a)(ii)(B) or 4.03(a)(ii)(C) of   the Indenture, as applicable;
    
	
 
    	
 
    
	
 
    	
for each of clauses (i) and (ii), determined as   if Counterparty had elected to satisfy its conversion obligation in respect   of such Relevant Convertible Securities by the Convertible Security   Settlement Method, notwithstanding any different actual election by   Counterparty with respect to the settlement of such Relevant Convertible   Securities (collectively, the “Convertible Obligation”);   provided that (i) if the “Daily   VWAP” (as defined in the Indenture) for any “VWAP Trading Day” (as defined in   the Indenture) during any Cash Settlement Averaging Period is equal to or   greater than the Cap Price, then clause (ii) of the relevant Daily   Conversion Value for such VWAP Trading Day shall be determined as if such   Daily VWAP for such VWAP Trading Day were deemed to equal the Cap Price and   (ii) for the avoidance of doubt, the Delivery Obligation shall be   determined excluding any Shares and/or cash that Counterparty is obligated to   deliver to holder(s) of the Relevant Convertible Securities as a direct   or indirect result of any adjustments to the Conversion
    


 

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Rate pursuant to a Fundamental Change Adjustment or   a Discretionary Adjustment and any interest payment that Counterparty is (or   would have been) obligated to deliver to holder(s) of the Relevant   Convertible Securities for such Conversion Date. Notwithstanding the   foregoing, in all events the Delivery Obligation shall be capped so that the   value of (x)(I) the number of Shares comprising the Delivery Obligation multiplied by the Share Obligation Value Price plus (II) the amount of cash comprising the Delivery   Obligation, does not exceed (y) the relevant Net Convertible Share   Obligation Value. For the avoidance of doubt, if the “Daily Conversion Value”   (as defined in the Indenture) for any “VWAP Trading Day” (as defined in the   Indenture) occurring in the relevant Cash Settlement Averaging Period is less   than or equal to USD1000.00 divided by   60, Dealer will have no delivery obligation hereunder in respect of such VWAP   Trading Day.
    
	
 
    	
 
    
	
Convertible Security   Settlement Method:
    	
For any Relevant Convertible Securities, if   (i) Counterparty has notified Dealer in the related Notice of Exercise   (or in the Notice of Final Convertible Security Settlement Method, as the   case may be) that it has elected to satisfy its conversion obligation in   respect of such Relevant Convertible Securities in cash or in a combination   of cash and Shares in accordance with Section 4.03(a)(i) of the   Indenture with a Specified Dollar Amount of at least USD1,000 (a “Cash Election”) and (ii) such Notice of Exercise (or   such Notice of Final Convertible Security Settlement Method, as the case may   be) contains all of the Settlement Method Election Provisions, the   Convertible Security Settlement Method shall be the settlement method   actually so elected by Counterparty in respect of such Relevant Convertible   Securities; otherwise, the Convertible Security Settlement Method shall   assume Counterparty had made a Cash Election with respect to such Relevant   Convertible Securities with a Specified Dollar Amount of USD1,000 per   Relevant Convertible Security (the Observation Period applicable to such   settlement method, the “Cash Settlement   Averaging Period” for such Relevant Convertible Securities).
    
	
 
    	
 
    
	
Settlement Method   Election Provisions:
    	
In order for the Convertible Security Settlement   Method to be the settlement method actually elected by Counterparty under the   Indenture in respect of the applicable Relevant Convertible Securities in   accordance with “Convertible Security Settlement Method” above, the related   Notice of Exercise (or Notice of Final Convertible Security Settlement   Method, as the case may be) must contain in writing the following   representations, warranties and acknowledgments from Counterparty to Dealer   as of
    


 

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such notice delivery   date (except that such representations, warranties and acknowledgments will   not be required in the case where the Relevant Convertible Securities will be   settled by Counterparty by delivery of a combination of cash and Shares with   a Specified Dollar Amount equal to USD1,000 where Counterparty has either   (x) failed to elect a settlement method under the Indenture in respect   of the applicable Relevant Convertible Securities so that Counterparty is   deemed to have elected such settlement method by default pursuant to   Section 4.03(a)(i) of the Indenture or (y) merely confirmed   such deemed election of the default settlement method pursuant to Section 4.03(a)(i) of   the Indenture):

 

(i) Counterparty is   not aware of any material nonpublic information regarding Counterparty or the   Shares;

 

(ii) Counterparty is   electing the Convertible Security Settlement Method in good faith and not as part of a plan or   scheme to evade compliance with the U.S. federal securities laws;   Counterparty is not electing the settlement method under the Indenture for   the Relevant Convertible Securities or the Convertible Security Settlement   Method to create actual or apparent trading activity in the Shares (or any   security convertible into or exchangeable for Shares) or to raise or depress   or otherwise manipulate the price of the Shares (or any security convertible   into or exchangeable for Shares) or otherwise in violation of the Exchange   Act; and Counterparty has not entered into or altered any hedging transaction   relating to the Shares corresponding to or offsetting the Transaction within   the meaning of Rule 10b5-1(c) under the Exchange Act;

 

(iii) Counterparty   has the power to make such election and to execute and deliver any   documentation relating to such election that it is required by this   Confirmation to deliver and to perform its obligations under this   Confirmation and has taken all necessary action to authorize such election,   execution, delivery and performance;

 

(iv) such election   and performance of its obligations under this Confirmation do not violate or   conflict with any law applicable to it, any provision of its constitutional   documents, any order or judgment of any court or other agency of government   applicable to it or any of its assets or any contractual restriction binding   on or affecting it or any of its assets; and
    


 

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(v) any   transaction that Dealer makes with respect to the Shares during the period   beginning at the time that Counterparty delivers such notice and ending at   the close of business on the final day of the Cash Settlement Averaging   Period shall be made by Dealer at Dealer’s sole discretion for Dealer’s own   account and Counterparty shall not have, and shall not attempt to exercise,   any influence over how, when, whether or at what price Dealer effects such   transactions, including, without limitation, the prices paid or received by   Dealer per Share pursuant to such transactions, or whether such transactions   are made on any securities exchange or privately.
    
	
 
    	
 
    
	
Notice of Delivery   Obligation:
    	
No later than the Exchange Business Day immediately   following the last day of the relevant Cash Settlement Averaging Period,   Counterparty shall give Dealer notice of the final number of Shares and/or   amount of cash comprising the settlement obligation under the Indenture in   respect of the Relevant Convertible Securities; provided   that, with respect to any Exercise Date occurring during the Final Conversion   Period, Counterparty may provide Dealer, within the time period set forth   above, with a single notice of the aggregate number of Shares and/or amount   of cash comprising the settlement obligation under the Indenture in respect   of the Relevant Convertible Securities for all Exercise Dates occurring   during such period (it being understood, for the avoidance of doubt, that the   requirement of Counterparty to deliver such notice shall not limit   Counterparty’s obligations with respect to a Notice of Exercise or Notice of   Convertible Security Settlement Method, as the case may be, as set forth   above, in any way).
    
	
 
    	
 
    
	
Net Convertible Share   Obligation Value:
    	
With respect to Relevant Convertible Securities as   to a Conversion Date, the product of (x) the Applicable Percentage and   (y) difference of (i) the Total Convertible Share Obligation Value   of such Relevant Convertible Securities for such Conversion Date minus (ii) the aggregate principal amount of such   Relevant Convertible Securities for such Conversion Date.
    
	
 
    	
 
    
	
Total Convertible Share   Obligation Value:
    	
With respect to Relevant Convertible Securities with   respect to a Conversion Date, (i) (A) the number of Shares equal to   the aggregate number of Shares that Counterparty is obligated to deliver to   the holder(s) of Relevant Convertible Securities for such Conversion   Date pursuant to the Indenture (except that such number of Shares shall be   determined without taking into consideration any rounding pursuant to   Section 4.03(b) of the Indenture)
    


 

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multiplied by (B) the   Share Obligation Value Price plus   (ii) an amount equal to (A) the fractional Shares, if any, that   would have resulted but for the rounding under (i)(A) above multiplied by (B) the Share Obligation Value Price plus (iii) an amount of cash equal to the aggregate   amount of cash that Counterparty is obligated to deliver to the   holder(s) of Relevant Convertible Securities for such Conversion Date   pursuant to the Indenture; provided   that, the Total Convertible Share Obligation Value shall be determined excluding   any Shares and/or cash that Counterparty is obligated to deliver to   holder(s) of the Relevant Convertible Securities as a direct or indirect   result of any adjustments to the Conversion Rate pursuant to a Discretionary   Adjustment and any interest payment that Counterparty is (or would have been)   obligated to deliver to holder(s) of the Relevant Convertible Securities   for such Conversion Date.
    
	
 
    	
 
    
	
Share Obligation   Value Price:
    	
The opening price as displayed under the heading   “Op” on Bloomberg page “FOLD.Q <Equity>” (or any successor   thereto) on the applicable Settlement Date.
    
	
 
    	
 
    
	
Other Applicable   Provisions:
    	
To the extent Dealer is obligated to deliver Shares   hereunder, the provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity   Definitions will be applicable as if “Physical Settlement” applied to the   Transaction; provided that the   Representation and Agreement contained in Section 9.11 of the Equity   Definitions shall be modified by excluding any representations therein   relating to restrictions, obligations, limitations or requirements under   applicable securities laws that exist as a result of the fact that   Counterparty is the issuer of the Shares.
    
	
 
    	
 
    
	
Certificated   Shares:
    	
Notwithstanding anything to the contrary in the   Equity Definitions, Dealer may, in whole or in part, deliver Shares required   to be delivered to Counterparty hereunder in certificated form in lieu of   delivery through the Clearance System. With respect to such certificated   Shares, the Representation and Agreement contained in Section 9.11 of   the Equity Definitions shall be modified by deleting the remainder of the   provision after the word “encumbrance” in the fourth line thereof.
    
	
 
    	
 
    
	
Adjustments:
    	
 
    
	
 
    	
 
    
	
Method of   Adjustment:
    	
Notwithstanding Section 11.2 of the Equity   Definitions, upon the occurrence of any event or condition set forth in   Section 4.04(a) through (e) of the Indenture that the Calculation   Agent determines would result in an adjustment under the Indenture by   reference to such Section thereof (an “Adjustment   Event”), the Calculation Agent shall make the corresponding   adjustment in respect of any one or more of the Strike Price, the Number of   Options, the
    


 

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Option Entitlement and   any other term relevant to the exercise, settlement,  payment or other terms of the Transaction,   subject to “Discretionary Adjustments” below (other than the Cap Price), to   the extent an analogous adjustment would be made under the Indenture, and   (ii) upon the occurrence of any Adjustment Event and/or any Potential   Adjustment Event, the Calculation Agent shall determine the economic effect   of such Adjustment Event and/or Potential Adjustment Event and, if the   Calculation Agent, acting in good faith and in a commercially reasonable   manner, determines that such economic effect is material, shall, but without   duplication of any adjustment pursuant to clause (i) above, make any   further adjustment to the Cap Price consistent with the “Calculation Agent   Adjustment” set forth in Section 11.2(c) of the Equity Definitions   (as modified hereby) to preserve the fair value of the Transaction after   taking into account such Adjustment Event and/or Potential Adjustment Event;   provided that the Cap Price shall not be adjusted so that it is less than the   Strike Price.  As soon as reasonably   practicable upon the occurrence of any Adjustment Event, Counterparty shall   notify the Calculation Agent of such Adjustment Event; and once the   adjustments to be made to the terms of the Indenture and the Convertible   Securities in respect of such Adjustment Event have been determined,   Counterparty shall as soon as reasonably practicable notify the Calculation   Agent in writing of the details of such adjustments.

 

In addition, the   Calculation Agent shall, to the extent the Calculation Agent determines   practicable, make a corresponding adjustment to the settlement terms of the   Options (but without duplication of any adjustment pursuant to the foregoing   paragraph) to the extent an analogous adjustment would be made pursuant to   Section 4.05(a) of the Indenture; provided   that the Calculation Agent may limit or alter any such adjustment referenced   in this sentence so that the fair value of the Transaction is not reduced as   a result of such adjustment.  For the   avoidance of doubt, Dealer shall not have any delivery obligation hereunder   in respect of any “Distributed Property” delivered by Counterparty pursuant   to the second sentence of Section 4.04(c) of the Indenture or any   payment obligation in respect of any cash paid by Counterparty pursuant to   the second sentence of Section 4.04(d) of the Indenture   (collectively, the “Dilution Adjustment   Fallback Provisions”), and no adjustment shall be made to the   terms of the Transaction (other than, if applicable pursuant to the preceding   paragraph, the Cap Price) on account of any event or condition described in   the Dilution Adjustment Fallback Provisions.
    


 

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Discretionary   Adjustments:
    	
Notwithstanding anything to the contrary herein or   in the Equity Definitions, if the Calculation Agent in good faith disagrees with   any adjustment under the Indenture that involves an exercise of discretion by   Counterparty or its board of directors (including, without limitation,   pursuant to Section 4.05(a) of the Indenture or pursuant to   Section 4.07(a) of the Indenture or any supplemental indenture   entered into thereunder or in connection with any proportional adjustment or   the determination of the fair value of any securities, property, rights or   other assets), then the Calculation Agent will determine the adjustment to be   made to any one or more of the Strike Price, Number of Options, Option   Entitlement and any other variable relevant to the exercise, settlement or   payment of the Transaction in a commercially reasonable manner.
    
	
 
    	
 
    
	
Extraordinary   Events:
    	
 
    
	
 
    	
 
    
	
Merger Events:
    	
Notwithstanding Section 12.1(b) of the   Equity Definitions, except to the extent set forth under the provisions set   forth under “Consequences of Announcement Events” and “Announcement Event”   below, a “Merger Event” means the occurrence of any event or condition set   forth in Section 4.07(a) of the Indenture.
    
	
 
    	
 
    
	
Consequences of Merger   Events/Tender Offers:
    	
Notwithstanding Section 12.2 of the Equity   Definitions, (i) upon the occurrence of a Merger Event that the   Calculation Agent determines by reference to Section 4.07(a) of the   Indenture would result in an adjustment under the Indenture, the Calculation   Agent shall make a corresponding adjustment in respect of any one or more of   the nature of the Shares, the Strike Price, the Number of Options, the Option   Entitlement and any other term relevant to the exercise, settlement, payment   or other terms of the Transaction; provided that   such adjustment shall be made without regard to any adjustment to the   Conversion Rate pursuant to a Fundamental Change Adjustment or a   Discretionary Adjustment; and provided further   that the Calculation Agent may limit or alter any such adjustment referenced   in this clause (i) so that the fair value of the Transaction is not   reduced as a result of such adjustment; and provided   further that if, with respect to a Merger Event, (x) the   consideration for the Shares includes (or, at the option of a holder of   Shares, may include) shares of an entity or person that is not a corporation   organized under the laws of the United States, any state thereof or the   District of Columbia or (y) the Counterparty to the Transaction   following such Merger Event will not be a corporation organized under the   laws of the United States, any state thereof or the District of Columbia
    


 

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and/or will not be the Issuer or a wholly-owned   subsidiary of Issuer whose obligations hereunder are fully and   unconditionally guaranteed by Issuer following such Merger Event, in either   case, Cancellation and Payment (Calculation Agent Determination) shall apply;   and (ii) upon the occurrence of a Merger Event, a “Merger Event” (as   defined in the Equity Definitions) and/or a Tender Offer, the Calculation   Agent shall determine the economic effect of such Merger Event, “Merger   Event” (as defined in the Equity Definitions) and/or Tender Offer and, if the   Calculation Agent, acting in good faith and in a commercially reasonable   manner, determines that such economic effect is material, shall, but without   duplication of any adjustment pursuant to clause (i) above, make such   further adjustments to the Cap Price to preserve the fair value of the   Transaction; provided that the Cap Price shall not be adjusted so that it is   less than the Strike Price.
    
	
 
    	
 
    
	
Notice of Merger   Consideration and Consequences:
    	
Upon the occurrence of a Merger Event that causes   the Shares to be converted into the right to receive more than a single type   of consideration (determined based in part upon any form of stockholder election),   Counterparty shall reasonably promptly (but in any event prior to the   relevant merger date) notify the Calculation Agent of (i) the type and   amount of consideration that a holder of Shares would have been entitled to   in the case of reclassifications, consolidations, mergers, sales or transfers   of assets or other transactions that cause Shares to be converted into the   right to receive more than a single type of consideration, (ii) if   holders of Shares affirmatively make such an election, the weighted average   of the types and amounts of consideration to be received by the holders of   Shares that affirmatively make such an election, and (iii) the details   of the adjustment to be made under the Indenture in respect of such Merger   Event.
    
	
 
    	
 
    
	
Consequences of   Announcement Event:
    	
Modified Calculation Agent Adjustment as set forth   in Section 12.3(d) of the Equity Definitions; provided that, in   respect of an Announcement Event, references to “Tender Offer” shall be   replaced by references to “Announcement Event” and references to “Tender   Offer Date” shall be replaced by references to “date of such Announcement   Event”; provided further that, in respect of an Announcement Event,   Section 12.3(d)(i)(A) of the Equity Definitions shall be amended by   replacing the words “exercise, settlement, payment or any other terms of the   Transaction (including, without limitation, the spread)” with “Cap Price”. An   Announcement Event
    


 

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shall be an “Extraordinary Event” for purposes of   the Equity Definitions, to which Article 12 of the Equity Definitions is   applicable.
    
	
 
    	
 
    
	
Announcement   Event:
    	
(i) The public announcement (x) by Issuer   or any of its affiliates of any Merger Event, “Merger Event” (as defined in   the Equity Definitions) or Tender Offer, the intention to enter into a Merger   Event, “Merger Event” (as defined in the Equity Definitions) or Tender Offer   or any transaction or event that, if completed, would constitute a Merger   Event, “Merger Event” (as defined in the Equity Definitions) or Tender Offer   or (y) by a party to the relevant proposed transaction or its   affiliate of any Merger Event, “Merger Event” (as defined in the Equity   Definitions) or Tender Offer, the intention to enter into a Merger Event, “Merger   Event” (as defined in the Equity Definitions) or Tender Offer or any   transaction or event that in the commercially reasonable determination of the   Calculation Agent is likely to lead to a Merger Event, “Merger Event” (as   defined in the Equity Definitions) or Tender Offer (it being understood that   the Calculation Agent may make such determination by reference to the impact   of such announcement on the market for the Shares or options relating to the   Shares and such other factors as the Calculation Agent deems relevant in its   commercially reasonable determination), (ii) the public announcement by   Issuer or any of its subsidiaries of any acquisition where the aggregate   consideration exceeds 25% of the market capitalization of Issuer as of the   date of such announcement (an “Acquisition Transaction”)   that the Calculation Agent, acting in good faith and in a commercially   reasonable manner, determines has a material economic effect on the fair   value of the Transaction (it being understood that the events referred to in   Section 11.2(e)(vii) of the Equity Definitions, as amended hereby,   will exclude the public announcement by the Issuer or any of its subsidiaries   of any acquisition where the aggregate consideration is equal to or less than   25% of the market capitalization of the Issuer as of the date of such   announcement), (iii) the public announcement by Issuer of an intention   to solicit or enter into, or to explore strategic alternatives or other   similar undertaking that may include, a Merger Event, “Merger Event” (as   defined in the Equity Definitions), Tender Offer and/or Acquisition   Transaction or (iv) any subsequent public announcement of a change to a   transaction or intention that is the subject of an announcement of the type   described in clause (i), (ii) or (iii) of this sentence (including,   without limitation, a new announcement, whether or not by the same party,   relating to such a transaction or intention or the
    


 

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announcement of a   withdrawal from, or the abandonment or discontinuation of, such a transaction   or intention) (in each case, whether such announcement is made by Issuer or a   third party); provided that, for the   avoidance of doubt, the occurrence of an Announcement Event with respect to   any transaction or intention shall not preclude the occurrence of a later   Announcement Event with respect to such transaction or intention.

 
    
	
 
    	
 
    
	
Nationalization, Insolvency   or Delisting:
    	
Cancellation and Payment (Calculation Agent   Determination); provided that in addition to   the provisions of Section 12.6(a)(iii) of the Equity Definitions,   it will also constitute a Delisting if the Shares are not immediately   re-listed, re-traded or re-quoted on any of the New York Stock Exchange, NYSE   MKT, The NASDAQ Global Select Market or The NASDAQ Global Market or the   NASDAQ Capital Market (or their respective successors); if the Shares are   immediately re-listed, re-traded or re-quoted on any such exchange or   quotation system, such exchange or quotation system shall thereafter be   deemed to be the Exchange.
    
	
 
    	
 
    
	
Additional   Termination Event(s):
    	
Notwithstanding anything to the contrary in the   Equity Definitions, if, as a result of an Extraordinary Event, any   Transaction would be cancelled or terminated (whether in whole or in part)   pursuant to Article 12 of the Equity Definitions, an Additional   Termination Event (with such terminated Transaction(s) (or portions   thereof) being the Affected Transaction(s) and Counterparty being the   sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7,   12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement   shall apply to such Affected Transaction(s).
    
	
 
    	
 
    
	
Additional   Disruption Events:
    	
 
    
	
 
    	
 
    
	
(a)         Change in Law:
    	
Applicable; provided that   Section 12.9(a)(ii) of the Equity Definitions is hereby amended by   (i) replacing the phrase “the interpretation” in the third line thereof   with the phrase “, or public announcement of, the formal or informal   interpretation”, (ii) by adding the phrase “and/or Hedge Position” after   the word “Shares” in clause (X) thereof and (iii) by immediately   following the word “Transaction” in clause (X) thereof, adding the   phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided, further that   (i) any determination as to whether (A) the adoption of or any   change in any applicable law or regulation (including, for the avoidance of   doubt and without limitation, (x) any tax law or (y) adoption or   promulgation of new regulations authorized or mandated by existing statute)   or (B) the promulgation of or any change in the interpretation by any   court, tribunal or regulatory
    


 

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authority with competent jurisdiction of any applicable   law or regulation (including any action taken by a taxing authority), in each   case, constitutes a “Change in Law” shall be made without regard to   Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection   Act of 2010 or any similar legal certainty provision in any legislation   enacted, or rule or regulation promulgated, on or after the Trade Date,   and (ii) Section 12.9(a)(ii) of the Equity Definitions is   hereby amended by replacing the parenthetical beginning after the word   “regulation” in the second line thereof the words “(including, for the   avoidance of doubt and without limitation, (x) any tax law or   (y) adoption or promulgation of new regulations authorized or mandated   by existing statute)”.
    
	
 
    	
 
    
	
(b)         Failure to Deliver:
    	
Applicable
    
	
 
    	
 
    
	
(c)          Insolvency Filing:
    	
Applicable
    
	
 
    	
 
    
	
(d)         Hedging Disruption:
    	
Applicable; provided   that:
    
	
 
    	
 
    
	
 
    	
(i)             Section 12.9(a)(v) of   the Equity Definitions is hereby modified by:

 

(a)         inserting the following   words at the end of clause (A) thereof:    “in the manner contemplated by the Hedging Party on the Trade Date”;

 

(b)         inserting the following   two phrases at the end of such Section:

 

“For the avoidance of   doubt, the term “equity price risk” shall be deemed to include, but shall not   be limited to, stock price and volatility risk. And, for the further   avoidance of doubt, the transactions or assets referred to in phrases   (A) or (B) above must be available on commercially reasonable   pricing and other terms.”;

 

(ii)          Section 12.9(b)(iii) of   the Equity Definitions is hereby amended by replacing, in the third line   thereof,  the words “to terminate the   Transaction”, with the words “ to terminate (x) the Transaction or   (y) a portion of the Transaction affected by such Hedging Disruption   (with such election between the immediately preceding clauses (x) and   (y) made by the Hedging Party in its commercially reasonable   discretion)”.

 
    
	
 
    	
 
    
	
(e)          Increased Cost of   Hedging:
    	
Not Applicable
    
	
 
    	
 
    
	
Hedging Party:
    	
Dealer
    
	
 
    	
 
    
	
Determining Party:
    	
Dealer
    


 

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Non-Reliance:
    	
Applicable
    
	
 
    	
 
    
	
Agreements and   Acknowledgments Regarding Hedging Activities:
    	
Applicable
    
	
 
    	
 
    
	
Additional   Acknowledgments:
    	
Applicable
    
	
 
    	
 
    
	
3.              Calculation   Agent:
    	
Dealer; provided   that following the occurrence and during the continuation of an Event of   Default pursuant to Section 5(a)(vii) of the Agreement with respect   to which Dealer is the sole Defaulting Party, if the Calculation Agent fails   to timely make any calculation, adjustment or determination required to be   made by the Calculation Agent hereunder or to perform any obligation of the   Calculation Agent hereunder and such failure continues for five   (5) Exchange Business Days following notice to the Calculation Agent by   Counterparty of such failure, Counterparty shall have the right to designate   an independent, nationally recognized equity derivatives dealer to replace   Dealer as Calculation Agent over the period during which such Event of   Default has occurred and is continuing, and the parties hereto shall work in   good faith to execute any appropriate documentation required by such   replacement Calculation Agent.

 

Following any   determination, adjustment or calculation by the Calculation Agent, the   Calculation Agent shall, upon request from Counterparty, promptly provide   Counterparty with a written report (in a commonly used file format for the   storage and manipulation of financial data) describing in reasonable detail   such determination, adjustment or calculation (but without disclosing   Dealer’s confidential or proprietary models or other information that is   subject to contractual, legal or regulatory obligations to not disclose such   information).

 
    


 

4.              Account Details:

 

Dealer Payment Instructions:

 

Chase Manhattan Bank New York

For A/C Goldman, Sachs & Co.

A/C #930-1-011483

ABA:  021-000021

 

Counterparty Payment Instructions:

 

To be provided by Counterparty.

 

5.              Offices:

 

The Office of Dealer for the Transaction is:

 

200 West Street, New York, New York 10282-2198

 

The Office of Counterparty for the Transaction is:

 

Not Applicable.

 

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6.              Notices: For purposes of this Confirmation:

 

(a)                                 Address for notices or communications to Counterparty:

 

To:                                                                             Amicus Therapeutics, Inc.

1 Cedar Brook Drive

Cranbury, NJ 08512

 

Attn:                                                                    Chip Baird

Chief Financial Officer

Telephone:                                   609-662-5022

Email:                                                            cbaird@amicusrx.com

 

With a copy to:

 

Attn:                                                                    Ellen Rosenberg

General Counsel

Telephone:                                   609-662-5019

Email:                                                            erosenberg@amicusrx.com

 

(b)                                 Address for notices or communications to Dealer:

 

To:                                                                             Goldman, Sachs & Co.

200 West Street

New York, NY 10282-2198

 

Attn:                                                                     Bennett Schachter

Structured Equity Group

Telephone:                                  212-902-2568

Facsimile:                                        212-902-3000

Email:                                                           bennett.schachter@gs.com

 

With a copy to:

 

Attn:                                                                   Joshua Murray

Telephone:                                  212-902-3291

Email:                                                            Joshua.Murray@gs.com

 

And email notification to the following address:

Eq-derivs-notifications@am.ibd.gs.com

 

7.              Representations, Warranties and Agreements:

 

(a)                                 In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, Dealer as follows:

 

(i)                                     On the Trade Date and as of the date of any election by Counterparty of the Share Termination Alternative under (and as defined in) Section 8(c) below, (A) Counterparty is not aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.

 

(ii)                                  On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,”

 

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as such term is defined in Regulation M under the Exchange Act (“Regulation M”) and (y) Issuer shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Trade Date.

 

(iii)                               Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Dealer nor any of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements).

 

(iv)                              As of the Trade Date (or at any time during the ten business day period immediately preceding the Trade Date), Counterparty and its affiliates have not announced or been engaged in an “issuer tender offer” as such term is defined in Rule 13e-4 under the Exchange Act, nor is it aware of any third party tender offer with respect to the Shares within the meaning of Rule 13e-1 under the Exchange Act.

 

(v)                                 Prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction. Based on such resolutions, neither Dealer nor any of its affiliates shall be subject to the restrictions under Section 203 of the Delaware General Corporation Law as an “interested stockholder” of Counterparty by virtue of (A) its role as initial purchaser of, or market-maker in, the Convertible Securities, (B) its entry into the Transaction and/or (C) any hedging transactions in Counterparty’s securities in connection with the Transaction.

 

(vi)                              Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.

 

(vii)                           Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(viii)                        On each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation.

 

(ix)                              [Reserved]

 

(x)                                 To Counterparty’s knowledge, no state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) (in each case, excluding requirements under U.S. federal securities laws generally applicable to ownership of shares of common stock listed on the Exchange) as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(xi)                              Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including, without limitation, the transaction that is the subject of this confirmation and any transactions related hereto or contemplated hereby; (B) will exercise independent judgment in evaluating the recommendations of Dealer and its affiliates or associated persons with regard to any such securities transactions or strategies unless it has otherwise notified Dealer in writing; and

 

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(C) has total assets of at least $50 million. Counterparty will notify Dealer if the immediately preceding statement contained in this Section 7(a)(xi) ceases to be true.

 

(xii)                           Without limiting the generality of Section 3(a) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2015, as updated by any subsequent filings, to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

(b)                                 Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, and is entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise) and not for the benefit of any third party.

 

(c)                                  Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) thereof.  Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.

 

(d)                                 Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code.  The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” within the meaning of Section 546 of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.

 

(e)                                  Counterparty shall deliver to Dealer (i) an incumbency certificate, dated as of the Effective Date, of Counterparty in customary form and (ii) an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement, Sections 7(a)(vii) and 7(a)(xii) hereof.

 

(f)                                   Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with this Transaction and any other over-the-counter derivative transactions between Counterparty and Dealer or its affiliates, Dealer or its affiliates is

 

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acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof.

 

(g)                                  Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.

 

(h)                                 Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.

 

(i)                                     Counterparty represents and warrants that the assets used in the Transaction (i) are not assets of any “plan” (as such term is defined in Section 4975 of the U.S. Internal Revenue Code (the “Code”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to Title I of ERISA, and (ii) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section 2510-3-101.

 

(j)                                    On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.

 

8.  Other Provisions:

 

(a)                                 Right to Extend.  Dealer may postpone or add, in whole or in part, any Exercise Date or Settlement Date or any other date of valuation or delivery by Dealer, with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer determines, in its reasonable discretion, based on the advice of counsel in the case of clause (ii) below, that such extension or addition is reasonably necessary or appropriate (i) to maintain or unwind a commercially reasonable Hedge Position in light of existing liquidity conditions in the cash market, the stock borrow market or other relevant market (but only if the Calculation Agent determines that there is a material decrease in liquidity relative to Dealer’s expectations as of the Trade Date) or (ii) to enable Dealer to effect transactions with respect to Shares or Share Termination Delivery Units in connection with maintaining or unwinding a commercially reasonable Hedge Position in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer); provided that such policies and procedures have been adopted by Dealer in good faith and are generally applicable in similar situations and applied in a non-discriminatory manner.

 

(b)                                 Additional Termination Events.

 

(i)                                     The occurrence of (A) an event of default with respect to Counterparty under the terms of the Convertible Securities as set forth in Section 6.01 of the Indenture that results in the Convertible Securities becoming or being declared due and payable pursuant to the terms of the Indenture, (B) an Amendment Event, or (C) Dealer’s receipt of notice from Counterparty, within the time period set forth under “Notice of Exercise” above (provided that, such notice shall be effective for purposes of this Section 8(b)(i)(C) if given after the Notice Deadline, but prior to 5:00 PM New York City time, on the fifth Exchange Business Day following the Notice Deadline, it being understood that in determining the related Excluded Conversion Unwind Payment, Dealer may take into account, in a commercially reasonable manner, any additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline), of a Notice of

 

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Exercise in respect of an Excluded Conversion Event, in each case, shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement; provided that in the case of an Excluded Conversion Event the Transaction shall be subject to termination only in respect of a number of Options (the “Affected Number of Options”), equal to the lesser of (1) the number of Convertible Securities that cease to be outstanding in connection with or as a result of such Excluded Conversion Event minus the “Affected Number of Options” (as defined in the Base Capped Call Transaction Confirmation), if any, that relate to such Excluded Conversion Event (and, for the purposes of determining whether any Options under this Confirmation or under the Base Capped Call Transaction Confirmation will be among the Affected Number of Options hereunder or among the “Affected Number of Options” under, and as defined in, the Base Capped Call Transaction Confirmation, the Affected Number of Options shall be allocated first to the Base Capped Call Transaction Confirmation until all Options thereunder are exercised or terminated), and (2) the number of Options then outstanding; provided, further that in the case of an Excluded Conversion Event, the amount payable pursuant to Section 6 of the Agreement with respect to the related Affected Number of Options shall be subject to a cap equal to the amount of the Net Convertible Share Obligation Value that would apply with respect to such Affected Number of Options if (I) the number of Excluded Convertible Securities related to such Affected Number of Options were the “Relevant Convertible Securities”, (II) the “Conversion Date” (as defined in the Indenture) with respect to such Excluded Convertible Securities were the “Conversion Date”, and (III) the date of payment with respect to such Early Termination Date were the “Settlement Date”.  For the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement in connection with an Excluded Conversion Event (such amount, the “Excluded Conversion Unwind Payment”), the Calculation Agent shall assume (x) that the relevant Excluded Convertible Securities shall not have been converted and remain outstanding, (y) in the case of an Induced Conversion, that any adjustments, agreements, additional payments, deliveries or acquisitions by or on behalf of Counterparty or any affiliate of Counterparty in connection therewith had not occurred and (z) except for purposes of determining the cap applicable to such amount as described in the second proviso to the immediately preceding sentence, that no holders of Convertible Securities were entitled to receive any additional Shares pursuant to a Fundamental Change Adjustment, if any. Counterparty shall notify Dealer promptly following the occurrence of any Excluded Conversion Event.

 

If Counterparty has notified, or deemed to have notified, Dealer, in accordance with the requirements set forth herein, in the applicable Notice of Exercise (or in the Notice of Final Convertible Security Settlement Method, as the case may be) that it has elected to satisfy its conversion obligation in respect of the related Excluded Convertible Securities entirely in Shares or in a combination of cash and Shares, then in lieu of paying the Excluded Conversion Unwind Payment entirely in cash, Dealer shall pay and/or deliver to Counterparty, on the date such Excluded Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, as determined by Dealer taking into account existing liquidity conditions and Dealer’s commercially reasonable hedging and hedge unwind activity or settlement activity in connection with delivery) (A) in the case where Counterparty has elected to satisfy its conversion obligation in respect of the related Excluded Convertible Securities entirely in Shares or in a combination of cash and Shares with a “Specified Dollar Amount” (as defined in the Indenture) equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Excluded Conversion Unwind Payment divided by (y) a market price per Share (which market price per Share may, but is not required to, correspond to the “Daily VWAP” over the “Observation Period” (each as defined in the Indenture), if applicable, with respect to the Excluded Convertible Securities) (the “Market Price”) determined by the Calculation Agent or (B) in the case where Counterparty has elected to satisfy its conversion obligation in respect of the related Excluded Convertible Securities in a combination of cash and Shares with a “Specified Dollar Amount” (as defined in the Indenture) greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Excluded Conversion Unwind Payment and (2) the product

 

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of (I) the Applicable Percentage, (II) the excess of such “Specified Dollar Amount” (as defined in the Indenture) over USD 1,000 and (III) the Affected Number of Options and (y) if the amount of such Excluded Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (x) the amount of such excess divided by (y) the Market Price. Notwithstanding anything to the contrary herein, any payment calculated pursuant to Section 8(b)(i)(C) in respect of an Excluded Conversion Event shall not be a “Payment Obligation” to which the Share Termination Alternative provisions of Section 8(c) below apply; provided that, for the avoidance of doubt, in the case of a payment or delivery pursuant to Section 8(b)(i)(C) following an Extraordinary Event, the Calculation Agent may adjust the composition of the Shares as appropriate to reflect the composition of consideration received by holders of Shares in such Extraordinary Event (as determined in a manner consistent with the provisions opposite the caption “Share Termination Delivery Unit” below) and the provisions opposite the caption “Other Applicable Provisions” below shall apply.

 

“Amendment Event” means that Counterparty amends, modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Securities governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, absence of redemption right of Counterparty, any term relating to conversion of the Convertible Securities (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Securities to amend, in each case without the prior consent of Dealer (but excluding, for the avoidance of doubt, any amendment, modification or supplement (x) pursuant to Section 8.01(b) of the Indenture that conforms the Indenture to the description of Convertible Securities in the Preliminary Offering Circular dated December 14, 2016, as supplemented by the related pricing term sheet, as determined by the Calculation Agent, or (y) that is required to be made pursuant to Section 4.07(a) of the Indenture).

 

“Excluded Conversion Event” means any conversion of Convertible Securities with a “Conversion Date” (as defined in the Indenture) occurring prior to the 65th Scheduled Trading Day prior to the Maturity Date.

 

“Induced Conversion” means a conversion of any Excluded Convertible Securities (A) in connection with (x) an adjustment to the Conversion Rate effected by Counterparty (whether any Discretionary Adjustment or otherwise) that is not required under the terms of the Indenture or (y) an agreement by Counterparty with the holder(s) of such Convertible Securities whereby, in the case of either (x) or (y), the holder(s) of such Convertible Securities receive upon conversion or pursuant to such agreement, as the case may be, a payment of cash or delivery of Shares or any other property or item of value that was not required under the terms of the Indenture or (B) after having been acquired from a holder of Convertible Securities by or on behalf of Counterparty or any of its affiliates other than pursuant to a conversion by such Holder and thereafter converted by or on behalf of Counterparty or any affiliate of Counterparty.

 

(ii) (1)                Within 5 Scheduled Trading Days following settlement of any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Securities subject to such Repayment Event (the “Repayment Convertible Securities”) (any such notice, a “Repayment Notice”); provided that any “Repayment Notice” delivered to Dealer pursuant to the Base Capped Call Transaction Confirmation shall deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 8(b)(ii). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any action taken by Counterparty in respect of a Repayment Event, including, without limitation, the delivery of a Repayment Notice.

 

(2)                                 Upon receipt of any such Repayment Notice, Dealer shall designate an

 

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Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repayment Event and correspond to a payment date pursuant to Section 6(d)(ii) of the Agreement that occurs as promptly as commercially reasonable thereafter) as an Early Termination Date with respect to a portion (the “Repayment Terminated Portion”) of the Transaction consisting of a number of Options (the “Repayment Options”) equal to the lesser of (A) the number of Repayment Convertible Securities in denominations of USD1,000 that are subject to the relevant Repayment Event (and for the purposes of determining whether any Convertible Securities will be Repayment Convertible Securities hereunder or under, and as defined in, the Base Capped Call Transaction Confirmation, Convertible Securities that are subject to a Repayment Event shall be allocated first to the Base Capped Call Transaction Confirmation until all Options thereunder are exercised or terminated) and (B) the Number of Options as of the date Dealer designates such Early Termination Date, and as of such date, the Number of Options shall be reduced by the number of Repayment Options.

 

(3)                                 Any payment or delivery in respect of such termination of the Repayment Terminated Portion of the Transaction shall be made pursuant to Section 6 of the Agreement and, if applicable, Section 8(c) of this Confirmation.  Counterparty shall be the sole Affected Party with respect to such Additional Termination Event and the Repayment Terminated Portion of the Transaction shall be the sole Affected Transaction. “Repayment Event” means that (i) any Convertible Securities are repurchased by Counterparty or any of its subsidiaries (including in connection with, or as a result of, a Fundamental Change, a tender offer, exchange offer or similar transaction or for any other reason), (ii) any Convertible Securities are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Securities is repaid prior to the final maturity date of the Convertible Securities (other than upon acceleration of the Convertible Securities described in Section 8(b)(i) of the Confirmation), or (iv) any Convertible Securities are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other securities of Counterparty or any of its Affiliates (as defined in the Indenture) (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that no conversion of Convertible Securities pursuant to the terms of the Indenture shall constitute a Repayment Event.

 

(4)                                 Counterparty shall cause any Convertible Securities subject to a Repayment Event to be promptly cancelled and acknowledges and agrees that, except to the extent provided above in this Section 8(b)(ii), all such Convertible Securities subject to a Repayment Event will be deemed for all purposes under the Transaction to be permanently extinguished and no longer outstanding.

 

(c)                               Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.  If Dealer shall owe Counterparty any amount pursuant to Section 12.2 of the Equity Definitions or “Consequences of Merger Events/Tender Offers” above, or Section 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Counterparty shall have the right, in its sole discretion, to require Dealer to satisfy any such Payment Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M. New York City time on the relevant merger date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable (“Notice of Share Termination”); provided that if Counterparty does not elect to require Dealer to satisfy its Payment Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole discretion, to elect to satisfy its Payment Obligation by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary; and provided further that Counterparty shall not have the right to so elect (but, for the avoidance of doubt, Dealer shall have the right to so elect) in the event (i) of an Insolvency, a Nationalization or a Merger Event, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash, (ii) of an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the Affected Party or an Extraordinary Event, which Event of Default, Termination Event or Extraordinary Event resulted from an event or events within

 

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Counterparty’s control or (iii) that Counterparty fails to remake the representation set forth in Section 7(a)(i) as of the date of such election.  Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the relevant merger date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable:

 

	
Share   Termination Alternative:
    	
If applicable, means that Dealer shall deliver to   Counterparty the Share Termination Delivery Property on the date on which the   Payment Obligation would otherwise be due pursuant to “Consequences of Merger   Events” above or Section 12.2, 12.6, 12.7 or 12.9 of the Equity   Definitions or Section 6(d)(ii) of the Agreement, as applicable, or   such later date or dates as the Calculation Agent may reasonably determine   (the “Share Termination Payment Date”), in   satisfaction of the Payment Obligation.
    
	
 
    	
 
    
	
Share Termination Delivery Property:
    	
A number of Share Termination Delivery Units, as   calculated by the Calculation Agent, equal to the Payment Obligation divided   by the Share Termination Unit Price. The Calculation Agent shall adjust the   Share Termination Delivery Property by replacing any fractional portion of   the aggregate amount of a security therein with an amount of cash equal to   the value of such fractional security based on the values used to calculate   the Share Termination Unit Price.
    
	
 
    	
 
    
	
Share   Termination Unit Price:
    	
The value of property contained in one Share   Termination Delivery Unit on the date such Share Termination Delivery Units   are to be delivered as Share Termination Delivery Property, as determined by   the Calculation Agent in its discretion by commercially reasonable means and   notified by the Calculation Agent to Dealer at the time of notification of   the Payment Obligation.
    
	
 
    	
 
    
	
Share   Termination Delivery Unit:
    	
In the case of a Termination Event, Event of Default,   Delisting or Additional Disruption Event, one Share or, in the case of an   Insolvency, Nationalization or Merger Event, one Share or a unit consisting   of the number or amount of each type of property received by a holder of one   Share (without consideration of any requirement to pay cash or other   consideration in lieu of fractional amounts of any securities) in such   Insolvency, Nationalization or Merger Event, as applicable. If such   Insolvency, Nationalization or Merger Event involves a choice of consideration   to be received by holders, such holder shall be deemed to have elected to   receive the maximum possible amount of cash.
    
	
 
    	
 
    
	
Failure to   Deliver:
    	
Applicable
    
	
 
    	
 
    
	
Other Applicable   Provisions:
    	
If Share Termination Alternative is applicable, the   provisions of Sections 9.8, 9.9, 9.10 and 9.11 of the Equity Definitions will   be applicable as if “Physical Settlement” applied to the Transaction, except   that all references to “Shares” shall be read as references to “Share   Termination Delivery Units”; provided that   the Representation and Agreement contained in Section 9.11 of the Equity   Definitions shall be modified by excluding any representations therein   relating to restrictions, obligations, limitations or requirements under   applicable securities laws as a result of the fact that Counterparty is the   issuer of any Share Termination Delivery Units (or any part thereof).
    


 

(d)                                 Disposition of Hedge Shares.  Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, based on advice of counsel, the Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the U.S.

 

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public market by Dealer without registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering of equity securities of similar size, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities of similar size, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities of similar size and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities; provided, however, that if Counterparty elects clause (i) above but the items referred to therein are not completed in a timely manner, or if Dealer, in its sole commercially reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(d) shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance satisfactory to Dealer, including customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as is customary for private placements agreements, all reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); or (iii) purchase the Hedge Shares from Dealer at the “Daily VWAP” (as defined in the Indenture) on such Exchange Business Days, and in the amounts, requested by Dealer.  This Section 8(d) shall survive the termination, expiration or early unwind of the Transaction.

 

(e)                                  Repurchase and Conversion Rate Adjustment Notices.  Counterparty shall, prior to 9:00 a.m., New York City time, on any day on which Counterparty effects any repurchase of Shares or consummates or otherwise engages in any transaction or event that could reasonably be expected to lead to an increase in the Conversion Rate (a “Conversion Rate Adjustment Event”), give Dealer a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) on such day if, following such repurchase or Conversion Rate Adjustment Event, the Notice Percentage would reasonably be expected to be (i) greater than 4.5% and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater by 0.5% than the Notice Percentage as of the date hereof), and, if such repurchase or Conversion Rate Adjustment Event, or the intention to effect the same, would constitute material nonpublic information with respect to Counterparty or the Shares, Counterparty shall make public disclosure thereof at or prior to delivery of such Repurchase Notice.  The “Notice Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares plus the number of Shares underlying any other call options sold by Dealer to Counterparty and the denominator of which is the number of Shares outstanding on such day.  In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 8(e) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses (including losses relating to the Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to this Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act or under any state or federal law, regulation or regulatory order, relating to or arising out of such failure.  If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.  In addition, Counterparty will reimburse any

 

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Indemnified Party for all reasonable, out-of-pocket expenses (including reasonable, out-of-pocket counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty.  This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee of Dealer.

 

(f)                                    Transfer and Assignment.  Either party may transfer or assign any of its rights or obligations under the Transaction with the prior written consent of the non-transferring party, such consent not to be unreasonably withheld or delayed; provided that Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to (i) any affiliate of Dealer or (ii) any person, or any person whose obligations would be guaranteed by a person, in either case, of credit quality equivalent to Dealer’s (or its guarantor’s); provided further that it shall be a condition to a transfer or assignment by Dealer without Counterparty’s consent that, as determined by Dealer in good faith, (x) as of the date of such transfer or assignment, and giving effect thereto, Counterparty will not be required (or, as determined by Dealer in good faith, reasonably expected) to pay the transferee, assignee or Dealer on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment and (y) as of the date of such transfer or assignment, and giving effect thereto, the transferee or assignee will not be required to withhold or deduct on account of Tax from any payments under the Agreement or will be required to gross up for such Tax under Section 2(d)(i)(4) of the Agreement. If at any time at which (1) the Equity Percentage exceeds 8.0%, (2) the Option Equity Percentage exceeds 14.5% or (3) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law or other federal, state or local law, rule, regulation or regulatory order or organizational documents or contracts of Counterparty applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration, filing or notification obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Restrictions and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1% of the number of Shares outstanding on the date of determination (either such condition described in clause (1), (2) or (3), an “Excess Ownership Position”), Dealer, in its discretion, is unable to effect a transfer or assignment to a third party after its commercially reasonable efforts on pricing and terms and within a time period reasonably acceptable to Dealer such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that an Excess Ownership Position no longer exists following such partial termination.  In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(c) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty were the sole Affected Party with respect to such partial termination, (iii) such portion of the Transaction were the only Terminated Transaction and (iv) Dealer were the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares plus the number of Shares underlying any other call options sold by Dealer to Counterparty and the denominator of which is the number of Shares outstanding on such day.  The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (collectively, “Dealer Group”) “beneficially own” (within the meaning of Section 13 of the Exchange Act) without duplication on such day and (B) the denominator of which is the number of Shares outstanding on such day.  In the

 

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case of a transfer or assignment by Counterparty of its rights and obligations hereunder and under the Agreement, in whole or in part (any such Options so transferred or assigned, the “Transfer Options”), to any party, withholding of such consent by Dealer shall not be considered unreasonable if such transfer or assignment does not meet the reasonable conditions that Dealer may impose including, but not limited, to the following conditions:

 

(A)                           With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 8(e) or any obligations under Section 2 (regarding Extraordinary Events) or 8(d) of this Confirmation;

 

(B)                           Any Transfer Options shall only be transferred or assigned to a third party that is a U.S. person (as defined in the Internal Revenue Code of 1986, as amended);

 

(C)                           Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, undertakings with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty as are requested and reasonably satisfactory to Dealer;

 

(D)                           Dealer will not, as a result of such transfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer and assignment;

 

(E)                            An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;

 

(F)                             Without limiting the generality of clause (B), Counterparty shall have caused the transferee to make such Payee Tax Representations and to provide such tax or other documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and

 

(G)                           Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.

 

(g)                                  Staggered Settlement. Dealer may, by notice to Counterparty prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on one or more dates (each, a “Staggered Settlement Date”) or at two or more times on the Nominal Settlement Date as follows:

 

(i)                                     in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date, but not prior to the earlier of the relevant Conversion Date and the first day of the relevant Cash Settlement Averaging Period) or delivery times and how it will allocate the Shares it is required to deliver under “Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times; and

 

(ii)                                  the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date.

 

(h)                                 Disclosure.  Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.

 

(i)              No Netting or Set-off.  The provisions of Section 2(c) of the Agreement shall not apply to the Transaction. Each party waives any and all rights it may have to set-off delivery or payment obligations it

 

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owes to the other party under the Transaction against any delivery or payment obligations owed to it by the other party under any other agreement between the parties hereto, by operation of law or otherwise.

 

(j)            Equity Rights.  Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy.  For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement.  For the avoidance of doubt, the parties acknowledge that the obligations of Counterparty under this Confirmation are not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.

 

(k)         Early Unwind.  In the event the sale by Counterparty of the Optional Securities (as defined in the Purchase Agreement) is not consummated pursuant to the Purchase Agreement for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to the first sentence of Section 7(e), in each case by the close of business in New York on the Premium Payment Date (or such later date as agreed upon by the parties) (the Premium Payment Date or such later date being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”) on the Early Unwind Date and the Transaction and all of the respective rights and obligations of Dealer and Counterparty hereunder shall be cancelled and terminated.  Following such termination and cancellation, each party shall be released and discharged by the other party from, and agrees not to make any claim against the other party with respect to, any obligations or liabilities of either party arising out of, and to be performed in connection with, the Transaction either prior to or after the Early Unwind Date.  Dealer and Counterparty represent and acknowledge to the other that upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.

 

(l)             Wall Street Transparency and Accountability Act of 2010.  The parties hereby agree that none of (v) Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), (w) any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (x) the enactment of WSTAA or any regulation under the WSTAA, (y) any requirement under WSTAA nor (z) an amendment made by WSTAA, shall limit or otherwise impair either party’s rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein or the Agreement (including, but not limited to, rights arising from a Change in Law, a Failure to Deliver, a Hedging Disruption, an Increased Cost of Hedging, an Excess Ownership Position or Illegality (as defined in the Agreement)).

 

(m) Payment by Counterparty. In the event that, following the payment of the Premium hereunder by counterparty, an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, such amount shall be deemed to be zero.

 

(n)         Governing Law.  THE AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT AND THIS CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

(o)         Amendment.  This Confirmation and the Agreement may not be modified, amended or supplemented, except in a written instrument signed by Counterparty and Dealer.

 

(p)         Counterparts.  This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

(q)         Designation by Dealer. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer obligations in respect of the Transaction and any

 

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such designee may assume such obligations.  Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.

 

(r)            Tax Matters.

 

(i)                                     Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act.  “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Master Agreement, shall not include any withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Master Agreement.

 

(ii)                                  HIRE Act.  “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Master Agreement, shall not include any tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or any regulations issued thereunder.

 

(iii)                               Tax documentation. Counterparty shall provide to Dealer a valid U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) upon reasonable request of Dealer and (iii) promptly upon learning that any such tax form previously provided by Counterparty has become obsolete or incorrect.  Additionally, Counterparty shall, promptly upon request by Dealer, provide such other tax forms and documents reasonably requested by Dealer.  Dealer shall provide to Counterparty a valid U.S. Internal Revenue Service  Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) upon reasonable request of Counterparty and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect.  Additionally, Dealer shall, promptly upon request by Counterparty, provide such other tax forms and documents reasonably requested by Counterparty.

 

(iv)                              Tax Representations.  Counterparty represents to Dealer that for U.S. federal income tax purposes it is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) and an “exempt recipient” (as that term is used in section 1.6049-4(c)(1) of the United States Treasury Regulations).  Dealer represents to Counterparty that for U.S. federal income tax purposes it is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) and an “exempt recipient” (as that term is used in section 1.6049-4(c)(1) of the United States Treasury Regulations).

 

(s)           Amendment to Equity Definitions.  The following amendments shall be made to the Equity Definitions:

 

(i)                                     Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) at Dealer’s option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that Issuer.”

 

(ii)                                  solely in respect of adjustments to the Cap Price:  the first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the relevant Shares or options on the Shares and, if so, will (i) make appropriate adjustment(s), if any, to any one or more

 

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of:’ and, the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”;

 

(iii)                               solely in respect of adjustments to the Cap Price:  Sections 11.2(a) and 11.2(e)(vii) of the Equity Definitions are hereby amended by deleting the words “diluting or concentrative” and replacing them with “material economic” and adding the words “or options on the Shares, as a result of, or in connection with, a direct or indirect action by Counterparty and/or its subsidiaries (including any action in concert with, or consented to by, Counterparty and/or its subsidiaries)” at the end of the sentence; and

 

(iv) Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.

 

(t)                                    Waiver of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

 

(u)                                 Jurisdiction.  THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.

 

(v)                               Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Daily VWAP; and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Daily VWAP, each in a manner that may be adverse to Counterparty.

 

(w)                               Designation by Dealer. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.

 

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Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Transaction, by manually signing this Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Dealer.

 

	
 
    	
Yours faithfully,
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
GOLDMAN, SACHS & CO.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
s/Daniela Rouse
    
	
 
    	
 
    	
Name: Daniela Rouse
    
	
 
    	
 
    	
Title: Vice President
    
	
 
    	
 
    
	
Agreed and Accepted By:
    	
 
    
	
 
    	
 
    
	
AMICUS   THERAPEUTICS, INC.
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
s/William D. Baird III
    	
 
    	
 
    
	
 
    	
Name: William D. Baird   III
    	
 
    
	
 
    	
Title: CFO